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Feature Article - Parliamentary reform
Extract from ‘Goodbye Westminster? A Small State Perspective on Changing Political Institutions’ by Dr Ralph Chapman, Honorary Associate, Department of Government, University of Tasmania
There are two alternative broad options for replacing Westminster. One is to move in the direction of a presidential executive system, the other is a different type of liberal democratic parliamentary system. Around the world there are numerous examples of parliamentary democracies in which legislature and executive are separate and which do not regard themselves as executive presidential systems because of the way in which accountability is maintained. The two offices of head of state and head of government can remain separate but as the representatives of the people parliament must retain the necessary authority to give legitimacy to those who govern.
Liberal democratic government demands an absolute commitment to governing in the public interest, on behalf of all people in the state. Accountability to the people for government actions is therefore of critical importance. Parliament must be so structured and its procedures so organised as to provide for true representation and accountability. A unicameral parliament is in greater danger of succumbing to executive dominance unless provisions to curb such occurrences are constitutionally entrenched. Parliament must be able to act as a forum for public discussion rather than merely a theatre in which to dramatise the two party adversarial charade. Legislation and policies must be exposed to public debate and criticism through parliament.
Calling those clothed with state authority to account is a prime function of parliamentary democracies. In small states to ensure this happens solely through parliament is extremely difficult. Other means must be employed, such as an extra-parliamentary form of administrative law, including an ombudsman and freedom of information legislation.
One possible institutional design for a single house in a state with a small population like Tasmania, is outlined below. It is intended to incorporate all the above facets. One issue on which I remain ambivalent is whether the parliament should appoint and dismiss the government. While I accept that parliament is not sovereign, in this proposal I am not certain that it is enough to rely on direct election of the premier and the representativeness of the parliament. I have therefore retained the need for there to be a constructive vote of confidence in the premier much as occurs in the German Bundestag. The alternative would be some form of impeachment proceedings but this seems to much like letting the horse bolt when we could have shut the stable doors first.
Edited version of ‘Constitutional Safeguards, Bicameralism, Small Jurisdictions and Tasmania’, by Harry Evans, Clerk of the Senate
Two of the primary difficulties of framing a satisfactory system of government are, first, to provide constitutional safeguards which are effective, and secondly, to provide such safeguards in small jurisdictions.
The aim of constitutional government is the avoidance of simple majoritarianism. In practice this means the avoidance of the situation where a political party which gains a simple majority, which is usually less than 50% of the total votes, rules the country. This form of government is exemplified by the so-called ‘Westminster system’ whereby such a party controls the legislature and forms the government. In the Australian context this means, or would mean but for constitutional safeguards, that the leaders of the faction which controls the party which gained the majority, rules the country.
Simple majoritarianism tends to destabilise democracies, because it produces overbearing majorities and alienated minorities. Simple majority government is more easily captured by a self-perpetuating faction to bring about this situation.
The cure for the evils of simple majoritarianism are institutional arrangements, particularly in the construction of the legislature, to encourage the formation of distributed majorities. If institutions require, for the making of major political decisions, the support of majorities distributed across different groups in society and different regions, factious government is made more acceptable and stable.
Federalism is a particular institutional arrangement which seeks to ensure the formation of distributed majorities by requiring special majorities for the passage of laws. But in the individual states of the federation this safeguard does not operate. How then are safeguards to operate at the state level.
Small jurisdictions pose particular problems. Structures to ensure constitutional government are inevitably complex and difficult to maintain; they are also relatively more expensive in small jurisdictions, yet have to operate often in a climate of concern about cost of government.
Tasmania has provided a particular manifestation of this problem. The moves to create a smaller parliament are an indication of the natural tendency to simplicity and economy of government. With a small legislature however, it is more difficult to secure adequate representation of all shades of opinion, and this makes an undistributed factional majority more likely. It also undermines a fundamental virtue of legislation by representative assembly, that of adequate deliberation as a small assembly tends to become more like a caucus and deliberation is contracted. In short constitutional government can be weakened by mere changes in the size of the legislature. There is an optimum size for a legislature which is not related to the size of the electorate and Tasmania is now below this optimum size.
There is a further problem; the maintenance of cabinet government where a Ministry is appointed from the majority and a shadow ministry from the minority. This is a system which evolved in a house of over 600 members. With a small house there are too few backbenchers left to undertake the parliamentary roles of monitoring executive activities and scrutinising legislation. The proper performance of such roles depends on there being significant numbers of backbenchers who have no hope of ever reaching the front bench and therefore have no incentive to be either servile to their party leaders or simply troublesome in the hope of gaining promotion.
There is also the problem of restricting the choice of ministers to a small pool of candidates. This leads to the conclusion that cabinet government cannot work properly in small jurisdictions with small assemblies. It simply becomes a form of absolutism: the cabinet controls the legislative as well the executive power.
Difficult problems require radical solutions. The houses of parliament of the state could continue with their current composition and powers. At the same time as the lower house is elected, a governor would be directly and separately elected by the electorate. The governor would be head of state as well as head of government and would appoint a small cabinet of ministers from outside the parliament, thus enlarging the ministerial talent pool. The parliament would perform the legislative functions of passing laws and scrutinising the operation of government. As governor and parliament would each be elected for a fixed term, there would be no power of dissolution and no early elections.
It is suggested that the houses have the ability to scrutinise, but not to veto, executive appointments while an executive veto of legislation could be overridden by a special majority of the houses.
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